SUSANA MARTINEZ Gov€mor JOHN A. SANCHEZ Lieutenant Governor 

### NEW MEXICO ENVIRONMENT DEPARTMENT 

## Surface Water Quality Bureau Harold Runnels Building, N2050 ll90 South St. Francis Drive (87505) P.O. Box 5469, Santa Fe, NM 87502-5469 Phorie (505) 827-0187 Fax (505) 827-0160 www.nmenv.state.nm.us 

### Original via UPS

-- Copy via Electronic Mail December 10, 2013 Mr. 

### William K. Honker, Director Water Quality Protection Division (6WQ) U. S. Environmental Protection Agency 1445 Ross Avenue, Suite 1200 Dallas, Texas 75202-2733 Re: State Certification Dear Mr. 

### Honker: DAVE MARTIN Secretary BUTCHTONGATE Deputy Secretary ERIKA SCHWENDER Director Resource Protection Division



### Enclosed, please find the state certification for the following proposed National Pollutant Discharge Elimination System (NPDES) permit: NPDES StormwaterMulti Sector General Permitfor IndustrialActivities

- NMROSOOOO Ifany, comments and conditions are enclosed on separate sheets. U.S. Enviromnental Protection Agency (USEPA) proposes to regulate discharges under the above-referenced NPDES Individual Permit. A state Water Quality Certification is required by the federal Clean Water Act (CWA) §401 to ensure thatthe action isconsistent with state law (New Mexico Water Quality Act, sections 74- 6-1 through 74-6-17, New Mexico Statutes Annotated (NMSA) 1978) and complies with state Water Quality Standards 

### [State ofNew Mexico, Standardsfor Interstate & 

### Intrastate Surface Waters, New Mexico Water Quality Control Commission, 20.6.4 New Mexico Administrative Code (NMAC)], the Water Quality Management Plan/Continuing Planning Process, including Total Maximum Daily Loads (TMDLs), and the Antidegradation Policy. Pursuant to State regulations for permit certification (Section 20.6.2.2001 NMAC), USEPAjointly with NMED issued a public notice ofthe draft permit and announced a public comment period posted onthe NMED web site www.nmenv.state.nm.us/swqb/WQA/Notice on September 27, 2013. The public comment period ended on November 26, 2013. NMED received no comments by the end ofthe commentperiod. Sincere! ,

e gan, Bureau Chief rface Water Quality BureauPage 2 of2 December 10, 2013 NPDES StormwaterMulti Sector General Permit for Industrial Activities- NMROSOOOO

cc: (w/enclosures) Ms. Diane Smith, USEPA (6WQ-NP) viae-mail Mr. BrentLarsen, USEPA (6WQ-PP) via e-mail

### Mr. Ron Curry, Regional Administrator Environmental Protection Agency 1445 Ross Avenue Dallas, TX 75202-2733 Date: December 10, 2013 STATE CERTIFICATION Re: NPDES Stormwater Multi Sector General Permit NPDES PermitNo. NMR050000 Dear Mr. Curry, The NewMexico Environment Department has examined the proposedNPDES permit above. The following conditions are necessary to assure compliance with the applicable provisions ofthe Clean Water Act Sections 208(e), 301,302,303,306, and 307 and with appropriate requirements ofState law. Compliance with the terms and conditions ofthe permit and this certification will provide reasonable assurance that the permitted activities will be conducted in a manner which will not violate applicable water quality standards and the water quality management plan and will be in compliance with the antidegradationpolicy. The State ofNew Mexico ( ) certifies that the discharge will comply with the applicable provisions ofSections 208(e), 301,302,303,306 and 307 ofthe Clean Water Act and with appropriate requirements of State law. ( x) certifies that the discharge will comply with the applicable provisions ofSections 208(e), 301, 302, 303, 306 and 307 ofthe Clean Water Act andwith appropriate requirements of State law upon inclusion ofthe following conditions in the permit. ( ) denies certification for the reasons stated in the attachment. ( ) waives its rightto certify. In order to meetthe requirements ofState law, including water quality standards and appropriate basin plans as may be amended by the water quality management plan, each ofthe conditionscited in the draft permit and the State certification shall notbe made less stringent. The Departmentreserves the rightto amend or revoke this certification ifsuch action is necessaryto ensure compliance with the State's water quality standards and water quality management plan. Please contact me at (505) 476-3671, ifyou have any questions concerning this certification. Comments and conditions pertainingto this draft permit are attached.

a es , Chief Surface Water Quality BureauNPDES Stormwater Multi Sector General Permit for Industrial Activities PermitNumber NMR050000 State Certification ofthe Proposed Permit December 10,2013 

### Conditions ofCertification Thefollowing revisions are necessary to ensure that discharges eligible for coverage under the NPDES Multi Sector General Permit (MSGP) for stormwater discharges from industrial facilities [as defined in 40 CFR Part 122.26(a)(4)] protect State water quality standards adopted in accordance with §303 of the Clean Water Act (CWA) and the New Mexico Water Quality Act [Chapter 74, Article 6 NMSA 1978]. State water quality standards are published in the document entitled Standardsfor Interstate and Intrastate Surface Waters, New Mexico Water Quality Control Commission, 20.6.4NMAC (As amended through June 5, 2013) (WQS). Andthe regulations also state at40 CFR §124.53(e)(2): State certification shallbe in writing andshall include: (2) When the State certifies a draftpermit instead of apermitapplication, any conditions more stringent than those in the draftpermitwhich the Statefinds necessary to meetthe requirementslisted in paragraph (e)(J) of this section. For each more stringent condition, the certifyingState agencyshall cite the CWA orState law references upon which that condition is based. Failure toprovide such a citation waives the right to certify with respect to that condition. NMED is conditioning this certification based on State law and the federal Clean Water Act as identified below to ensurethat compliancewith this permit protects designated uses across the State ofNew Mexico. Condition # 1: 40 CFRPart 122.44( d)(1 )(i) states: Limitations mustcontrolallpollutants orpollutantparameters (either conventional, nonconventional, or toxicpollutants) which the Director determines are or may be dischargedata level which willcause, have the reasonablepotential to cause, or contribute to an excursion above any State water quality standard, includingState narrative criteria for water quality. NMED's Water Quality ManagementPlan states in Part V.A: NMED willassure through appropriate review andcommunication with thepermittingauthority that permitrequirements andeffluent limitations are compatible with appropriate state law, protectwater quality

. standards and implement the water quality managementplan.

Although stormwater benchmark concentrations are notrigid permit limits (and therefore an exceedance ofa benchmarkvalue is only an indicator ofthe need to assess and fix or implement improved Best Management Practices, as indicated in EPA's Industrial Stormwater Monitoring and Sampling Guide, March 2009), it is critically importantthatthese values are protective ofin-stream water quality standards. In addition, a protective benchmark value ensures that accumulative effects ofmany discharges will not present the potential to exceed an in-stream water quality standard. Table 1 below lists the proposed benchmarkvalues in the 2013 MSGP. NMED has added an additional column withthe state water quality standard value belowthese benchmark values from the Standards for Interstate and Intrastate Surface Waters (as approved on June. 5, 2013), 20.6.4.900 NMAC.1: 

### Pollutant 

### NPDES Stormwater Multi Sector General Permit for Industrial Activities PermitNumberNMR050000 State Certification ofthe ProposedPermit December 10,2013

MSGP Benchmark (as Lowest New Mexico Hardness Water Standard value standard No standard

*EPA's are ona water mg!L. totest these hardness values and use EPA's Table 1 inAppendix Jofthe permitto determine their applicable limit. 1NMED's criteria are listed at a hardness value of 100 mg/L as CaC03 for comparisonto EPA's benchmark standard. 2 S04 dependent Due to the nature ofstormwater discharges inthe arid west, pollutants can accumulate on the ground surface for long periods oftime between rain events. Once the rain does occur during NewMexico's monsoon period (May to October), itwashes the accumulated pollutants down to the receiving water. Based on this specific hydrology, it is importantto ensure thatNewMexico'.s Water Quality Standards are reflected in the benchmarks for these industries in the permit. The indicated pollutants (highlighted) in the table above must be changedto reflect New Mexico water quality standards for the facilities in NewMexico.NPDES Stormwater Multi Sector General Permitfor Industrial Activities PermitNumberNMROSOOOO State Certification ofthe Proposed Permit December 10,2013 EPA defines saline/salt waters as having concentrations greater than or equal to 50 parts per thousand Total Dissolved Solids (as discussed onPage 52 ofthe pennit's proposed fact sheet). Saltwater values may apply to certain areas ofNew Mexico, such as the Pecos Basin below Santa Rosa and the Rio Grande below Elephant Butte. These values may also apply to waters that are part ofthe Colorado River Basin. Additionally, the tables below compare EPA's table ofhardness-based values to New Mexico water quality hardness-based values. The New Mexico values in this table must be included as the applicable benchmark values for New Mexico in the Final Pennit. EPA VAL Ltste m

**~ppen** LXJ o t e Propose UES'd'A fh dPenntt All Units BenchmarkValues (mg/L, total) .mg!L Cadmium Copper Nickel Silver Zinc 0-24.99 0.0005 0.0038 0.15 0.0007 0.04 25-49.99 0.0008 0.0056 0.20 0.0007 0.05 50-74.99 0.0013 0.0090 0.32 0.0017 0.08 75-99.99 0.0018 0.0123 0.42 0.0030 0.11 100-124.99 0.0023 0.0156 0.52 0.0046 0.13 125-149.99 0.0029 0.0189 0.61 0.0065 0.16 

## .. 150-174.99 0.0034 0.0221 0.71 0.0087 0.18 175-199.99 0.0039 0.0253 0.80 0.0112 0.20 200-224.99 0.0045 0.0285 0.89 0.0138 0.23 225-249.99 0.0050 0.0316 0.98 0.0168 0.25 250+ 0.0053 0.0332 1.02 0.0183 0.26 NMED VALUES from 20 6 4 900 NMAC

... All I (mg/L, dissolved) Units Aluminum Cadmium Copper Lead Nickel Silver Zinc mg!L 25 Acute 0.512 0.00051 0.004 0.014 0.140 0.0003 0.045 Chronic 0.205 0.00017 0.003 0.001 0.016 0.034 30 Acute 0.658 0.00059 0.004 0.017 0.170 0.0004 0.054 Chronic 0.263 0.00019 0.003 0.001 0.019 0.041 40 Acute 0.975 0.00076 0.006 0.024 0.220 0.0007 0.070 Chronic 0.391 0.00023 0.004 0.001 0.024 0.053 50 Acute 1.324 0.00091 0.007 0.030 0.260 0.0010 0.085 Chronic 0.530 0.00028 0.005 0.001 0.029 0.065 60 Acute 1.699 0.00107 0.008 0.037 0.300 0.0013 0.101 Chronic 0.681 0.00031 0.006 0.001 0.034 0.076 70 Acute 2.099 0.00122 0.010 0.044 0.350 0.0017 0.116 Chronic 0.84i 0.00035 0.007 0.002 0.038 0.088 80 Acute 2.520 0.00137 0.011 0.051 0.390 0.0022 0.131 Chronic 1.010 0.00039 0.007 0.002 0.043 0.099 90 Acute 2.961 0.00151 0.012 0.058 0.430 0.0027 0.145 Chronic 1.186 0.00042 0.008 0.002 0.048 0.110 100 Acute 3.421 0.00165 0.013 0.065 0.470 0.0032 0.160 Chronic 1.370 0.00045 0.009 0.003 0.052 0.121 200 Acute 8.838 0.00298 0.026 0.140 0.840 0.011 0.301 Chronic 3.541 0.00075 0.016 0.005 0.090 0.228 220 Acute 10.071

### NPDES StormwaterMulti Sector General Permitfor Industrial Activities PermitNumberNMR050000

Chronic 4.035 300 Acute 10.071 Chronic 4.035 400+ Acute 10.071 Chronic 4.035 State Certification ofthe Proposed Permit December 10,2013

0.00421 O.o38 0.210 1.190 0.00100 0.023 0.008 0.130 0.00538 0.050 0.280 1.510 122 0.029 O.otl 0.170 0.021 0.435 0.329 O.Q35 0.564 428

1 

### Acute vs Chronic applicability: Acute numeric standards shall be attained at the "point ofdischarge" (end-of-pipe) for any discharge to surface water with a designatedaquatic life use. 

### TSS values will be important for any criteria differences between total and dissolved measurements. Condition #2: In

### Part 8 ofthe proposed MSGP, in sectors G (Metal Mining), H (Coal Mines and Coal Mining-Related Facilities), I (Oil and Gas Extraction), and 

### J (Non-Metallic Mineral Mining and Dressing), EPA added language at the ''Technology Based Effluent Limits for Clearing, Grading and Excavation Activities" section in each sectorto mimic the requirements ofthe2012 Construction General Permit. In

### NMED's certification ofthe 2012 CGP, requirements were made which were more stringent as to inspection frequencies and timing ofinspections and corrective actions required as a result ofa rain event. These same certification requirements will apply to these sectors mentioned in this condition, as follows: Part 8.G.4.4, Part 8.H.4.4., and Part 8.J.4.4 ofthe permit states: 

### For aridor semi-aridregions- You must select, design, and install erosion control measures (e.g., degradable rollederosion controlproducts) with an appropriate seedbase toprovide erosion control for at least threeyears to achieve 70percent vegetative cover within 3years. Permittees can only use the option to "select, design, and install erosion control measures (e.g., degradable rolled erosion control products) with an appropriate seed base to provide erosion control for at leastthree years to achieve 70 percentvegetative cover within 3 years" in New Mexico as a method for final vegetative stabilization for purposes offiling a Notice ofTermination (NOT) under the following conditions: Ifthis option is selected, you must notify NMED atthe address listed in Part 9 at the time the NOT is submitted to EPA. The information to be submitted includes: • A copy ofthe NOT; • Contactinformation, including individual name ortitle, address, and phone number for the party responsible for implementing the final stabilization measures; and • The date that the permanent vegetative stabilization practice was implemented andthe projected timeframe that the 70% native vegetative cover requirements are expectedto bemet. (Note that ifmore thanthree years is required to establish 70 percent ofthe natural vegetative cover, this technique cannot be used or cited for fulfillment ofthe final stabilization requirement- you remain responsible for establishmentoffinal stabilization.) NMED also requires that operators periodically (minimum once/year) inspect and properly maintain the area until the criteria for final stabilization, as specified in Part 2.2 ofthe COP, have been met. Operators mustprepare an inspection report documenting the findings ofthese inspections and signed in accordance with Appendix B.ll. This inspection record must be retained along with the SWPPP for three years after the NOT is submitted for the site and additionally submitted to NMED at the address listed in Part 9.

### NPDES Stormwater Multi Sector General Permit for Industrial Activities PermitNumberNMROSOOOO State Certification ofthe ProposedPermit December 10,2013 The inspections must at a minimum include the following: • Observations ofall areas ofthe site disturbed by construction activity; • BestManagement Practices (BMPs)/post-construction storm water controls must be observed to ensure they are effective; • An assessment ofthe status ofvegetative re-establishment; and • Corrective actions required to ensure vegetative success within three years, and control ofpollutants in storm water runofffrom the site, including implementation dates.NPDES Stormwater Multi Sector GeneralPermitfor IndustrialActivities PermitNumberNMR050000 State Certificationoftbe Proposed Permit December 10,2013 Comments that are not Conditions ofCertification Comment#!: In Part 8.0.4.1.6, Part 8.H.4.1.6, and Part 8.J.4.1.6, the permit states; Exceptions: • Arid, semi-arid (if construction occurs duringseasonally dryperiod), or drought-stricken areas: • Within 14days of stoppingconstruction work in an area, install any necessary nonvegetative stabilization measures. NMED requests thatthe following language (underlined) be added to clarify timingrequirements: Within.14 days of stoppingconstruction work in an area butprior to the next rain event, install any necessary non-vegetative stabilization measures. Comment#2: In Part 8.0.4.2.1, Part 8.H.4.2.1, and Part 8.J.4.2.1, NMED requests the following language changes: ProhibitedNon-Stormwater Discharges: Wastewater from washoutof concrete, unless ma11agedhy an apprepiate eentrel; Wastewater from washoutandcleanout of stucco,paint,form release oils, curingcompounds, andother construction materials, unletHi managedhy an apprepriate

**eentl'el~** Comment#3: NMED is encouragedto note thatthe MSGP continues to prevent discharges to Tier 3 waters. These waters are resources that allow New Mexicans to exercise their full rights under the Clean Water Act for swimmable, fishable waters. Protection ofthese resources mustremain a high priority. Comment#4: During review ofthe proposed permit, it was noted that the only CERCLA sites listed in AppendixL were for sites in Region 10. The definition ofCERCLA sites as given in the proposed permit's fact sheet is referenced here: "

...afacility as defined in Section 101(9) ofCERCLA, 42 US.C. § 9601(9), that is undergoinga remedial investigation and feasibility study, or for which a Recordof Decision for remedialaction has been issued in accordance with the National Contingency Plan, 40 C.F.R Part300. This definition includes sites thathave been listedon theNational Priorities List in accordance with Section 105 ofCERCLA, 42 US.C.

.§9605, or thatare beingaddressed using CERCLA authority, including use of an agreementconsistentwith the SuperfUndAlternativeApproach Guidance. " NMED has included a list ofthe federal CERCLA sites in New Mexico as an attachment to this certification (AttachmentA). This list must be included in the final permit. NMED agrees that stormwater discharges from MSGP sites should not be allowed to interfere with cleanup activities at legacy contamination sites.Comment#5: NPDES Stormwater Multi Sector General Permit for Industrial Activities PermitNumberNMR050000 State Certification ofthe Proposed Permit December 10,2013

In the proposed permit's fact sheet, EPA discusses how certain Green Infrastructure practices may be considered Class V UIC wells. Ifa control measure that qualifies as a Class V well is used in New Mexico, the operator must submit a Notice ofIntent to NMED's Ground Water Quality Bureau for considerationas to whether.the facility must obtain a Discharge Permit for that measure. The NO! can be found at:http://www.nmenv.state.nm.us/gwb/FORMS/NewMexicoEnvironmentDepartment-GroundWaterQualityBureauForms.htm. In addition, the language in the permit itself, atPart 2.1.2.6 should note that these additional requirements apply. Many operators may not refer to the permit's fact sheet. Comment#6: In the proposed permit's fact sheet, and atPart 5.1 ofthe proposed permit, EPA states thatifEPA determines that a facility's SWPPP is not in compliance with the SWPPP requirements in Part 5.2, then EPA may require the SWPPP to be reviewed by a Professional Engineer or a Professional Geologist. NMED would also like to suggestthat EPA considerthe SWPPP review to be conducted by a person with a stormwater-specific certification. Although NMED does not endorse any particular certification program, examples ofstormwater certifications include Certified Professional in Storm Water Quality (CPSWQ), Certified Professional in Erosion and Sediment Control (CPESC), and Certified Inspector ofSediment and Erosion Control (CISEC), among others. Comment#7: Theproposed permit's fact sheet and the proposed permit at Part 5.4 state that the SWPPP must be available at the facility in any accessible format. NMED understands that accessible means the SWPPP is available to reviewon site atthe time ofthe inspection. Comment#8: According to the National Research Council's (NRC) report in 2008, the NRC recommended a tiered approach to benchmark monitoring and other requirements for industries covered under this permit. This approach as ·stated in the proposed permit's fact sheet is as follows (summarized): Level No Exposure Visual Monitoring Modeling Stringent Certification · Inspections Control Measures Low Yes, or facilities Yes No No No that only have galvanized steel 

## ' roofrunoff, or . other minimal loading Medium No Yes Yes Yes No High No Yes Yes Yes Yes

Benchmark monitoring requirements have come under scrutiny from manydifferent parties since their inception in the 1995 MSGP. According to the benchmark monitoring study included in the docket for this proposed permit, out ofthe 20 facilities that sent their SWPPPs and monitoring data for review (whose material was deemed to be reviewable), most had benchmark monitoring exceedances before and after implementingNPDES StormwaterMulti Sector GeneralPermit for Industrial Activities PermitNumberNMR050000 State Certification ofthe Proposed Permit December 10,2013 corrective actions in accordance withpermitrequirements. However, this monitoring is an important, butbasic, way to determine what pollutants are leaving these industrial sites. NMED agrees thattiering should be tied to site conditions. An adequately trained person who is tasked with developingthe SWPPP for the facility should have an understanding ofthe types ofactivities and exposures that will contribute to stormwater pollution and should be able to assess the appropriate tiering levels during development ofthe plan. Factors that EPA should consider while developing criteriafor determining appropriate Tier requirements are as follows: • BMPs manufactured/engineered for a specific design storm. i.e., BMPs designed for a 100-year storm eventmay require no benchmark monitoring, but BMPs designed for a 25 year, 24 hour storm event should require both visual and benchmark monitoring when discharges occur. • Criteria for a facility to qualify for No Exposure Certification should be more discreetly defined. One problemthathas been identified in the last permitterm (with the currentNEC guidance) is that ifa facility erects a roofover a process or storage area outdoors, is that enoughto qualify for no exposure?

• Ifthe facility has the potential to discharge pollutants thatare listed as concerns on the most current 303(d) list, the facility should sample for them regardless oftier level (unless the facility has qualified foraNEC). • Ifthere is a potential to discharge to a high quality river, the facility should be monitoring their discharge with visual and benchmark monitoring. • Ifthe facility is implementing Green Infrastructure practices, this should factor into the tier level qualification. This could be based onpercentage ofstormwater runoffthat is directed to a GI structure. Comment#9: In'the proposed permit's fact sheet, EPA discusses the intention to integrate a tool into the eNOl systemthatwill automatically determine receiving waters information and impairment status. NMED cannot access the tool and therefore cannot verify thatthe information contained in thetool is correct. NMED notes thatfrequently, the information contained on EPA websites for New Mexico water quality information is incorrect. NMED would encourage EPAto discuss with NMED the most efficient way to ensure that the most up-to-date information is being usedinthese determinations. Comment#10: EPA mentions that a list ofall Tier 2 waters in NewMexicowill be included as a partofAppendix L to the permit. NMED does not have such a list atthis currenttime, but offers the following explanation ofTier determinations in New Mexico. From theState of New Mexico Procedures forAssessingStandardsAttainment for the Integrated §303(d)-§305(b) Water QualityMonitoring andAssessmentReport:AssessmentProtocol: Tier 1: Tier I waters are determined pollutant-by-pollutant. Tier 1 applies to watersthat do not meetbut are not betterthan the water quality standards for existing ordesignated uses. Waters identified as "impaired" for any existing or designateduse according to the currentState of New Mexico Clean WaterAct§303(d)-§305(b) IntegratedListandReport automatically will be Tier I for the pollutantofconcern. Tier 2: Tier 2 waters are determined pollutant-by-pollutant. Tier 2 applies to waters whose quality is better than necessary to protectthe CWA Section IOI(a)(2) goals. Tier 2 applies to all classifiedwaters (e.g., identified in the NewMexico Water Quality Standards, Sections 101 through 899) that are not designated as Tier 1 on a parameter-by-parameter basis or as Tier 3. Tier 2 may apply to unclassified waters on a parameter-by-parameter basis depending on the available water quality information.

### NPDES Stormwater Multi Sector General Permit for Industrial Activities Permit NumberNMR050000 State Certification ofthe Proposed Permit December 10,2013 Tier 3: Tier 3 applies 

### to waters that are designated bythe Commission as "outstanding national 'resource waters" (ONRWs). The Commission designates Tier 3 waters after public notice and comment pursuant to procedures established in the New Mexico Water Quality Standards. See 20.6.4.9 NMAC. Comment#13: Inthe proposed permit atPart 1.2.1.2, EPA states that it is possible to receive a waiver to submit a paper NO!. If such a waiver is obtained, the permit language should indicate that a paper NO! should also be sentto NMED, however, NMED would prefer that the information is simply entered into the NO! tracking system to ensure that the information is publicly available. Comment#l4: NMED would like to see the footnote in Part 5.2.4 ofthe proposed permitmoved to Part 2.1.2 ofthe final permit to facilitate understanding ofthe requirements as written. Currently there is no explanation for the asterisks in thatportion ofthe proposedpermit.. 

### NPDES Stormwater Multi Sector General Permit for Industrial Activities PermitNumberNMROSOOOO

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### State Certification ofthe Proposed Permit December 10,2013

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